Motion to Dismiss

Defendant respectfully moves this Court, pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, to dismiss Plaintiff's Complaint in its entirety for lack of subject-matter jurisdiction. Plaintiff bears the burden of establishing, by a preponderance of the evidence, that this Court possesses jurisdiction over the claims asserted. As demonstrated herein, Plaintiff has failed to satisfy the constitutional minimum for standing under Article III, specifically, Plaintiff cannot demonstrate a concrete, particularized injury-in-fact that is fairly traceable to Defendant's conduct and likely to be redressed by a favorable judicial decision. In the absence of Article III standing, this Court is without jurisdiction and the action must be dismissed.

In the alternative, dismissal is warranted under Rule 12(b)(2) for lack of personal jurisdiction. Defendant is not incorporated in this forum state, does not maintain its principal place of business here, and has not engaged in purposeful availment of the forum's privileges sufficient to give rise to either general or specific personal jurisdiction consistent with International Shoe Co. v. Washington, 326 U.S. 310 (1945), and its progeny. Plaintiff's Complaint contains no factual allegations establishing that Defendant's contacts with this forum are so continuous and systematic as to render it essentially at home here, nor does it identify forum-related conduct giving rise to the claims at issue.

Dismissal is independently required under Rule 12(b)(6) because the Complaint fails to state a claim upon which relief can be granted. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A pleading that offers merely labels, conclusions, or formulaic recitations of the elements of a cause of action does not suffice. Plaintiff's Complaint does no more than parrot the statutory elements of each cause of action without pleading concrete factual allegations that, if true, would establish a plausible entitlement to relief.

With respect to [Count I / the principal claim], Plaintiff has failed to allege facts establishing [specific element]. The Complaint is devoid of any allegation that Defendant [describe omitted conduct], which is an indispensable element of Plaintiff's claim. Plaintiff's conclusory assertion that Defendant "acted unlawfully" or "breached its duty" does not satisfy the pleading standard articulated in Iqbal and Twombly. Because Plaintiff cannot plausibly allege this essential element, Count [I / II / all counts] must be dismissed with prejudice.

Venue is improper in this district under 28 U.S.C. § 1391. None of the defendants reside in this district, a substantial part of the events giving rise to the claims did not occur here, and no substantial part of the property that is the subject of this action is situated in this district. Where venue is improper, the Court shall dismiss the case or, in the interest of justice, transfer it to a district where it could have been brought. See 28 U.S.C. § 1406(a). Given the absence of any cognizable nexus between this district and the claims or parties, dismissal rather than transfer is the appropriate remedy.

Additionally, dismissal is warranted under Rule 12(b)(5) because Plaintiff failed to effect proper service of process as required by Rule 4 of the Federal Rules of Civil Procedure. Service upon Defendant was neither delivered to a person of suitable age and discretion at Defendant's dwelling or usual place of abode, nor delivered to an agent authorized by appointment or by law to receive service of process. Defendant was not properly served within the 90-day period prescribed by Rule 4(m), and Plaintiff has offered no good cause for the failure. Accordingly, the Complaint must be dismissed for insufficiency of service.

The legal standard for dismissal under Rule 12(b)(6) requires the Court to assume the truth of well-pleaded factual allegations but not legal conclusions or bare recitals of elements. Iqbal, 556 U.S. at 678-79. The plausibility inquiry is a context-specific task requiring the Court to draw on its judicial experience and common sense. Id. Where a complaint's factual allegations are consistent with lawful conduct and give rise to no more than a sheer possibility of unlawful conduct by the defendant, the pleading falls short of Rule 8(a)(2)'s requirement of a "short and plain statement" showing entitlement to relief.

For all of the foregoing reasons, Defendant respectfully requests that this Court enter an Order: (a) dismissing Plaintiff's Complaint in its entirety with prejudice; (b) awarding Defendant its costs of suit; and (c) granting such other and further relief as the Court deems just and proper. Should the Court decline to dismiss the action outright, Defendant requests in the alternative that the Court order Plaintiff to file an amended complaint correcting the deficiencies identified herein within a period not to exceed fourteen (14) days, and that all claims not adequately re-pleaded be dismissed with prejudice at that time.